Chr. Heurich Brewing Co. v. McGavin
| Decision Date | 06 December 1926 |
| Docket Number | No. 4386.,4386. |
| Citation | 16 F.2d 334,56 App. DC 389 |
| Parties | CHR. HEURICH BREWING CO. v. McGAVIN. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
F. F. Nesbit and Leon Tobriner, both of Washington, D. C., for appellant.
N. B. Landreau, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.
This is an appeal from a judgment for damages recovered against appellant by the appellee, who was plaintiff below, for personal injuries alleged to have been sustained by her because of the negligent operation of a gasoline truck by appellant's employee upon one of the streets of the District of Columbia. The suit was brought to recover jointly against the appellant company and its employee.
It appears that plaintiff was struck and injured by the truck while crossing a city street, and she charges that defendant company and its employee were negligent, in that they had negligently failed to maintain the brakes and appliances of the truck in good repair, and that the driver negligently failed to watch the street properly for pedestrians, and failed to give any warning signals, or make any proper effort to avoid striking plaintiff; also that the driver negligently failed to properly apply the brakes when plaintiff was observed, and made no proper efforts to avoid striking her.
The defendant company denied all charges of negligence, and alleged that plaintiff was negligent when crossing the street; that she failed to keep a proper lookout for vehicles approaching her and passing in and along the street, and failed to stop when she saw, or by the exercise of reasonable care could have seen, that the vehicle in question was so close that, if she continued to move forward, the vehicle could not be stopped in time to avoid colliding with her; and that her failure to use due care as aforesaid contributed to cause the injury complained of.
The record discloses that on October 15, 1923, in the daytime, the plaintiff undertook to cross from the north to the south side of New York avenue, at a point in the block between Ninth and Tenth streets; that there were parallel street car tracks in the middle of the avenue in that block, and automobiles were permitted to be parked next to and alongside of the car tracks, head on to them, leaving a roadway about 20 feet wide between the projecting rear ends of the parked automobiles and the curb; that upon the occasion in question the plaintiff walked across the north roadway and over the street car tracks; she then passed between the automobiles parked on the south side of the tracks, and started to cross the south roadway to the curb; that thereupon while in the roadway she was struck and injured by the truck going east.
The evidence relating to the circumstances of the accident is conflicting. The plaintiff testified in substance that, when she reached the street car tracks after crossing the north roadway, she looked in the proper direction before starting to cross the south roadway, and saw that "there was nothing to hinder her from crossing; that there was a truck away up"; that "it was quite a few feet on the other side of Tenth street"; that she did not see the truck again, after she started across the south roadway, until it struck her; that the right front wheel of the truck struck her left foot at the ankle and heel, and she was thrown toward the curb, where she was picked up.
Plaintiff called two witnesses in support of her claim. One of these testified in substance that he saw the accident; that he was riding in an open automobile following the truck across Tenth street; that when he first saw plaintiff she was about 25 or 30 feet from where the truck hit her; that she was crossing the street, and he was about 50 feet back of her when he saw her; that the truck was right on top of her, and knocked her to the curb; that the right-hand side of the front of the truck hit her, and threw her against the curb; that she was about 3 feet from the curb when the truck struck her; that the truck was going about 12 miles an hour; that he did not see it skid or swerve; that when he first saw the plaintiff she was about 10 or 12 feet in front of the truck, walking toward the curb; that he did not notice the truck until he saw the woman in the street, when the truck looked like it was going to hit her, and then it knocked her down; that where the woman crossed was at least 30 feet beyond where pedestrians cross the avenue; that automobiles were parked alongside of the street car tracks, and he saw plaintiff walk from where they were parked; that about a minute intervened from the time she walked out from between the automobiles and the time she was struck; that she was walking slowly; that she had passed from the left-hand side of the truck, when it struck her; that it was in the center of the roadway; that plaintiff had gone 12 or 13 feet from the point the automobiles were parked, or about 10 feet into the roadway; that the truck stopped as it struck her; that the driver stopped as quickly as he could; that the front of the car went about 5 feet after it struck her; that witness did not see what part of the truck struck her, and was unable to say which side of the truck struck her, but it was not the left wheel.
The second witness testified in substance that he was riding in the automobile driven by the previous witness; that the roadway from the back of the parked automobiles to the curb was about 20 feet wide; that when he first saw the plaintiff she was about one-third across this open space; that the truck was going about 8 or 10 or probably 12 miles an hour; that it was going slow; that he did not see the plaintiff when the truck struck her, and cannot tell which part struck her, except that it was the front; that he saw the truck start, and swerve and stop suddenly; that he got out and went to the front, and found the plaintiff lying on the curb; that the plaintiff had come across the parking, facing directly south, and when she disappeared the truck stopped, and the front wheels of the truck were swerved out from the curb to the driver's left, about 3 or 4 feet from the curb at the time; that the truck had been traveling slowly, and they were about to pass it;...
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